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EXHIBIT 10.1
THIRD AMENDMENT TO REVOLVING
CREDIT AND SECURITY AGREEMENT
This THIRD AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT (this
"Amendment") is made and entered into this 23rd day of March, 2001, by and among
VERSO TECHNOLOGIES, INC., a Minnesota corporation formerly known as Eltrax
Systems, Inc. ("Verso"); ELTRAX TECHNOLOGY SERVICES GROUP, INC., a Georgia
corporation ("Technology"); ELTRAX ASP GROUP, LLC, a Georgia limited liability
company ("ASP"); ELTRAX CUSTOMER CARE GROUP, INC., a Georgia corporation
("Customer Care"); ELTRAX INTERNATIONAL, INC., a Pennsylvania corporation
("International"); ELTRAX HOSPITALITY GROUP, INC., a Georgia corporation
("Hospitality"); and CEREUS TECHNOLOGY PARTNERS, INC., a Delaware corporation
("Cereus"; Verso, Technology, ASP, Customer Care, International, Hospitality and
Cereus, each a "Borrower" and collectively the "Borrowers"); the financial
institutions which are now or which hereafter become a party hereto
(collectively, the "Lenders" and individually a "Lender"); and PNC BANK,
NATIONAL ASSOCIATION, a national banking association ("PNC"), as collateral and
administrative agent for Lenders (PNC, together with its successors and assigns
in such capacity, the "Agent").
RECITALS:
Agent, Lenders and Borrowers are parties to a certain Revolving Credit
and Security Agreement dated March 14, 2000 (as amended at any time, the "Credit
Agreement") pursuant to which Lender has made certain revolving credit loans to
Borrower.
The parties desire to amend the Credit Agreement as hereinafter set
forth.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good
and valuable consideration, the receipt and sufficiency of which are hereby
severally acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. DEFINITIONS. All capitalized terms used in this Amendment,
unless otherwise defined herein, shall have the meaning ascribed to such terms
in the Credit Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT. Subject to the satisfaction
of the conditions precedent set forth in Section 3 hereof, the Credit Agreement
is hereby amended as follows:
a. By deleting the definition of "Net Cash Flow" from
Section 1.2 of the Credit Agreement in its entirety and inserting the
following in lieu thereof:
"Net Cash Flow" shall mean for any Person, with respect to any
fiscal period, the remainder of such Person's (a) EBITDA minus (b)
Unfunded Capital Expenditures minus (c) all interest expense of such
Person minus (d) scheduled principal payments made in respect of
Indebtedness for Money Borrowed other than (i) the Advances hereunder
and (ii) to the extent such payments are permitted to be made
hereunder, up to $1,000,000 of payments made to repurchase First
Debentures on or before December 31, 2000.
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b. By inserting the following definitions in Section 1.2
of the Credit Agreement in alphabetical order:
"First Debenture Purchase Agreement" shall mean that certain
Convertible Debenture Purchase Agreement dated as of July 27, 2000,
among Verso, Strong River Investments, Inc. and Bay Harbor Investments,
Inc.
"First Debentures" shall mean the 5.00% Convertible Debentures
that were issued by Verso on or after July 27, 2000 pursuant to the
First Debenture Purchase Agreement.
c. By deleting Section 6.5 of the Credit Agreement in
its entirety and inserting the following in lieu thereof:
6.5 NET CASH FLOW. Cause to maintained at the end of
each period shown below, at least the corresponding amount of Net Cash
Flow for the Borrowers on a consolidated basis:
Period Minimum Net Cash Flow
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Fiscal Quarter ending -$ 5,778,628
December 31, 2000
Two Fiscal Quarters ending -$ 9,916,700
March 31, 2001
Three Fiscal Quarters ending -$ 11,244,261
June 30, 2001
Four Fiscal Quarters ending -$ 12,340,252
September 30, 2001
Four Fiscal Quarters ending -$ 7,126,745
December 31, 2001
Four Fiscal Quarters ending -$ 3,515,770
March 31, 2002
Four Fiscal Quarters ending -$ 2,477,485
June 30, 2002
Four Fiscal Quarters ending -$ 1,378,840
September 30, 2002
Four Fiscal Quarters ending -$ 632,279
December 31, 2002 and on the last
day of each Fiscal Quarter thereafter
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d. By deleting Section 6.10 of the Credit Agreement in
its entirety and inserting the following in lieu thereof:
6.10 UNDRAWN AVAILABILITY. After the Closing Date,
Borrowers shall have Undrawn Availability at all times of at least
$1,000,000.
e. By deleting Section 7.6 in its entirety and inserting
the following in lieu thereof:
7.6 CAPITAL EXPENDITURES. Contract for, purchase or make
(i) any Capitalized Software Expenditures or commitment for Capitalized
Software Expenditures in any period of four Fiscal Quarter in an amount
in excess of $650,000 or (ii) any Capital Expenditures (other than
Capitalized Software Expenditures) or commitment for Capital
Expenditures (other than Capitalized Software Expenditures) in any
period in an amount in excess of the corresponding amount shown below
for such period:
Period Amount
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Four Fiscal Quarters ending $9,805,888
December 31, 2000
Fiscal Quarter ending $1,131,000
March 31, 2001
Two Fiscal Quarters ending $2,262,000
June 30, 2001
Three Fiscal Quarters ending $3,393,000
September 30, 2001
Four Fiscal Quarters ending $4,524,000
December 31, 2001
Fiscal Quarter ending $1,131,000
March 31, 2002
Two Fiscal Quarters ending $2,262,000
June 30, 2002
Three Fiscal Quarters ending $3,393,000
September 30, 2002
Four Fiscal Quarters ending $4,524,000
December 31, 2002
f. By deleting Section 7.11 in its entirety and
inserting the following in lieu thereof:
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7.11 LEASES. Enter as lessee into any lease arrangement
for real or personal property (unless capitalized and permitted under
Section 7.6 hereof) if, after giving effect thereto, the aggregate
rental payments for all Borrowers for all leased property for any
Fiscal Quarter would exceed $2,974,538 in the aggregate.
3. EURODOLLAR RATE LOANS. Notwithstanding any provision of the
Credit Agreement to the contrary, Borrowers hereby agree that they shall not be
entitled to obtain any Eurodollar Rate Loans under the Credit Agreement until
such time as the Net Cash Flow for the Borrowers on a consolidated basis for a
period of four consecutive Fiscal Quarters is greater than zero.
4. RATIFICATION AND REAFFIRMATION. Each Borrower hereby ratifies
and reaffirms the Obligations, each of the Loan Documents and all of such
Borrower's covenants, duties, indebtedness and liabilities under the Loan
Documents.
5. ACKNOWLEDGMENTS AND STIPULATIONS. Each Borrower acknowledges
and stipulates that the Credit Agreement and the other Loan Documents executed
by Borrowers are legal, valid and binding obligations of Borrowers that are
enforceable against Borrowers in accordance with the terms thereof; all of the
Obligations are owing and payable without defense, offset or counterclaim (and
to the extent there exists any such defense, offset or counterclaim on the date
hereof, the same is hereby waived by Borrowers); the security interests and
liens granted by Borrowers in favor of Lender are duly perfected, first priority
security interests and liens, except as permitted under the Credit Agreement;
and the unpaid principal amount of the Revolving Advances on and as of the
opening of business on March 23, 2001, totaled $0.
6. REPRESENTATIONS AND WARRANTIES. Each Borrower represents and
warrants to Lender, to induce Lender to enter into this Amendment, that no
Default or Event of Default exists on the date hereof; the execution, delivery
and performance of this Amendment have been duly authorized by all requisite
corporate action on the part of each Borrower and this Amendment has been duly
executed and delivered by Borrower; and all of the representations and
warranties made by Borrowers in the Credit Agreement are true and correct on and
as of the date hereof.
7. BREACH OF AMENDMENT. This Amendment shall be part of the
Credit Agreement and a breach of any of any representation, warranty or covenant
herein shall constitute an Event of Default.
8. EXPENSES OF AGENT AND LENDERS. Borrowers agree to pay, ON
DEMAND, all costs and expenses incurred by Agent and Lenders in connection with
the preparation, negotiation and execution of this Amendment and any other Loan
Documents executed pursuant hereto and any and all amendments, modifications,
and supplements thereto, including, without limitation, the costs and fees of
Agent's and Lenders' legal counsel and any taxes or expenses associated with or
incurred in connection with any instrument or agreement referred to herein or
contemplated hereby.
9. EFFECTIVENESS; GOVERNING LAW. This Amendment shall be
effective upon acceptance by Agent and Lenders (notice of which acceptance is
hereby waived), whereupon the same shall be governed by and construed in
accordance with the internal laws of the State of Georgia.
10. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
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11. NO NOVATION, ETC. Except as otherwise expressly provided in
this Amendment, nothing herein shall be deemed to amend or modify any provision
of the Credit Agreement or any of the other Loan Documents, each of which shall
remain in full force and effect. This Amendment is not intended to be, nor shall
it be construed to create, a novation or accord and satisfaction, and the Credit
Agreement as herein modified shall continue in full force and effect.
12. COUNTERPARTS; TELECOPIED SIGNATURES. This Amendment may be
executed in any number of counterparts and by different parties to this
Amendment on separate counterparts, each of which, when so executed, shall be
deemed an original, but all such counterparts shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.
13. FURTHER ASSURANCES. Each Borrower agrees to take such
further actions as Lender shall reasonably request from time to time in
connection herewith to evidence or give effect to the amendments set forth
herein or any of the transactions contemplated hereby.
14. SECTION TITLES. Section titles and references used in this
Amendment shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreements among the parties hereto.
15. RELEASE OF CLAIMS. TO INDUCE AGENT AND LENDERS TO ENTER INTO
THIS AMENDMENT, EACH BORROWER HEREBY RELEASES, ACQUITS AND FOREVER DISCHARGES
AGENT, LENDERS, AND ALL OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUCCESSORS AND
ASSIGNS OF AGENT AND LENDERS, FROM ANY AND ALL LIABILITIES, CLAIMS, DEMANDS,
ACTIONS OR CAUSES OF ACTION OF ANY KIND OR NATURE (IF THERE BE ANY), WHETHER
ABSOLUTE OR CONTINGENT, DISPUTED OR UNDISPUTED, AT LAW OR IN EQUITY, OR KNOWN OR
UNKNOWN, THAT SUCH BORROWER NOW HAS OR EVER HAD AGAINST AGENT OR ANY LENDER
ARISING UNDER OR IN CONNECTION WITH ANY OF THE LOAN DOCUMENTS OR OTHERWISE. EACH
BORROWER REPRESENTS AND WARRANTS TO AGENT AND LENDERS THAT SUCH BORROWER HAS NOT
TRANSFERRED OR ASSIGNED TO ANY PERSON ANY CLAIM THAT SUCH BORROWER EVER HAD OR
CLAIMED TO HAVE AGAINST AGENT OR ANY LENDER.
16. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE PARTIES HERETO EACH HEREBY WAIVES THE RIGHT TO TRIAL BY JURY
IN ANY ACTION, SUIT, COUNTERCLAIM OR PROCEEDING ARISING OUT OF OR RELATED TO
THIS AMENDMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal in, and delivered by their respective duly authorized
officers on the date first written above.
ATTEST: VERSO TECHNOLOGIES, INC.
(f/k/a Eltrax Systems, Inc.)
By: Xxxxxx X. Xxxxxxx
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Xxxxx Xxxxxxx, Assistant Secretary Name: /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President and Secretary
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ATTEST: ELTRAX TECHNOLOGY SERVICES
GROUP, INC.
By: Xxxxxx X. Xxxxxxx
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Xxxxx Xxxxxxx, Assistant Secretary Name: /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President and Secretary
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ATTEST: ELTRAX ASP GROUP, LLC
By: Xxxxxx X. Xxxxxxx
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Xxxxx Xxxxxxx, Assistant Secretary Name: /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President and Secretary
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ATTEST: ELTRAX CUSTOMER CARE GROUP, INC.
By: Xxxxxx X. Xxxxxxx
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Xxxxx Xxxxxxx, Assistant Secretary Name: /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President and Secretary
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ATTEST: ELTRAX INTERNATIONAL, INC.
By: Xxxxxx X. Xxxxxxx
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Xxxxx Xxxxxxx, Assistant Secretary Name: /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President and Secretary
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ATTEST: ELTRAX HOSPITALITY GROUP, INC.
By: Xxxxxx X. Xxxxxxx
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Xxxxx Xxxxxxx, Assistant Secretary Name: /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President and Secretary
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ATTEST: CEREUS TECHNOLOGY PARTNERS, INC.
By: Xxxxxx X. Xxxxxxx
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Xxxxx Xxxxxxx, Assistant Secretary Name: /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President and Secretary
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PNC BANK, NATIONAL ASSOCIATION, as
Lender and as Agent
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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Commitment Percentage: 100%
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